31 January 2005

[forward: I took a while to write this to let some of my emotional reaction die down. I've neither read the dissents nor many posts on blogs so that my reaction to the opinion would be mine. Therefore, you've probably read some of this elsewhere. I've worked on it for the last couple days but it still feels incomplete and not completely thought out but I doubt it would be complete absent a 30 page dissertation. Anyway, enjoy!]----------

Okay, as a fairly realistic fellow, I expected the pragmatists to find some way to allow police to continue to use dogs for non-searches which reveal things which are being looked for and would not have been found without the dogs. Much to my surprise the decision is authored by Justice Stevens. It's very short (3 pages), poorly reasoned (shocking for Stevens), and a devastating blow to the 4th Amendment.

The issue as it arrived at the Court was: during a typical pretext stop if the dog is run past the vehicle does that transmute the seizure from one that merely violates the spirit of the constitution to one which actually violates the strictly interpreted words of the constitution? Framed as such it is a fairly easy analysis. Did the dog running around the vehicle extend the time of the seizure longer than that time needed for the pretext stop? No. Then, as the Court has already ruled that pretext stops are constitutional and the seizure did not exceed that natural to the pretext stop there was no unconstitutional seizure. The analysis needed to go no further than this.

However, in the last sentence of the last full paragraph on page 4 Justice Stevens recognizes that a pretext stop can be transmuted into an unconstitutional seizure. Justice Stevens did not have to adopt this type of analysis nor did he provide any support for doing so. At first blush it looks like something which might be useful to defendants. However, he also ties the analysis to a "legitimate interest in privacy."

The 4th Amendment Only Applies if the Government Says It Does----------------------------------------

This is the point at which the Court pulls the big switch. You don't have a right to be free from a search unless there is no reason for the government to search you. My copy of the Constitution must be out of date because in it the 4th Amendment doesn't state that a citizen has a right to be secure in "persons, houses, papers, and effects" except should the government decide he does not. Maybe mine has a misprint.

What's the underlying assumption of the 4th Amendment? It seems to me fairly obvious. The government and citizenry will come into conflict over various matters. The government will seek to quash the acts of which there is official disapproval. Searches are a powerful tool in the hands of the government to accomplish its suppression of activities it has banned. Anticipating this sort of conflict, wide ranging general searches were banned. Specific searches for government declared contraband (the wrong type of Bible, religious tracts, political pamphlets, escaped slaves, prohibited alcohol, prohibited drugs, &cetera) were curtailed as well, favoring every citizen's right to be left alone unless the government could demonstrate "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". The 4th Amendment only makes sense if it curtails the government's search for contraband. After all, how often is the government going to be searching for your picture of Aunt Mildred or the paperclips you keep in your desk?

The Ultimate Creature of Perfection: The Dog----------------------------------------

Going further into the decision we are once again told that this tool for detecting trace odors is entirely unique, that there is no proof it ever makes errors and even if it did "the respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information." This last is appellate court speak for "You didn't make an incredibly obvious point because you assumed we were intelligent enough to know something this ridiculously simple. We're not." Now, since there is no right to privacy in things of which the government says there is no right to privacy a false alert must be revealing something which the government allows you to have a privacy interest in - the chocolate chip cookies on the passenger seat, the fact that your cat was in the car earlier today, the dog treats you have in the trunk with the rest of your groceries, &cetera. Either the dog is reacting to this item, it is faking, or it is just wrong; in any case it is the reason that the police will search the car and violate your privacy interest in the bag of milkbones you have in the trunk.

The assumption of canine infallibility is just amazing to me. All I can figure is that none of the majority has ever owned a dog. I'm going to assume that most of you have owned a dog that has tried to deceive you or done something for which it thinks will get it rewarded and know how silly canine infallibility is. As well, even by presumptively biased police records 38% failure rates have been recorded; perhaps a more accurate error rate might be something along the 59% rate when dogs are used to try and find medical problems. And we should all remember the poorly trained dogs which have been used by the government in the past. If anything dogs - with differing temperaments, cognitive abilities, levels of training, the ability to be effected by illness or age - are more apt to be prone to error than other tools used by law enforcement.

Next Justice Stevens tells us that Kyllo doesn't apply because the electronic tool addressed in that case could multi-task and expose legal activities. Dogs can't do that. A dog which can be trained to sniff out cocaine and trained to sniff out marijuana and trained to sniff out heroin couldn't possibly be trained to sniff out something legally in the car owner's possession. I mean, a police dog couldn't be trained to sniff out the gun powder or oil which would be found on the entirely legal firearm the car's owner has locked in the trunk. Could it?

Future Applications----------------------------------------

Assuming the multi-tasking ability is actually the basis of Kyllo this decision and technology effectively gut the 4th Amendment. All the government needs to do is make sure that each and every device it uses for random, non-suspicion based searches only does a single, very limited task. Concerned that someone in the jurisdiction might be growing marijuana in their house? Develop an instrument which only has a digital readout of temperature and will only show the temperature if it is high enough to indicate there is probably a grow room.

As long as technology continues to improve the government can continue to use it to get around the 4th Amendment as long as the electronics remain a one trick pony. The most likely method to do this is as described above: develop the technology but purposefully limit its user's access. It doesn't matter how powerful the scanning technology is, if the digital readout can only say "COCAINE" the officer cannot use it to find out that I have Aunt Mildred's picture hung on the back of the utility room closet door. And since Justice Stevens has ruled that the search is only unconstitutional if the officer is searching for or could find dear old Aunt Mildred's portrait the limitation on the readout makes it constitutional.

Final Observations----------------------------------------

Of course, I never read Kyllo to mean what this decision characterizes it as meaning. As I remember Kyllo it was about limiting primitive tools because more advanced tools along the same line could be developed to expose what is inside an area such as a house, car, pocket, &cetera. So I guess that canine olfactory capabilities could never be copied and expanded upon by a device which sampled air content, revealed the presence of trace chemical levels, and therefore tells an officer what is present in a vehicle, home or pocket. Yeah, right. So I still see a conflict between Kyllo and Caballes which will need to be dealt with in the future.

One of the major problems with this opinion is that dogs don't pass the test under the characterization of Kyllo in this case. As alluded to above, assuming dogs are infallible, they still clearly fail the multi-tasking test which seems to be the basis for the assertion that they will only reveal that which is illegal.

Perhaps this analysis will only apply to those who are the subject of a pretext stop and the Kyllo analysis will be applied to places where there is a higher expectation of privacy such as a house or a person's body. Who knows exactly? This opinion cries out for refinement. Sadly, I think this opinion was meant to be the final word, telling us all that "Yes, dog searches are constitutional" and I fear that lower courts will apply this as a blunt instrument without exploring the facts and legal analysis which have been glossed over in it.

30 January 2005

In Virginia, any person found in contempt of court has the right to appeal and the right to a hearing in a circuit court. The dilemma arises under Virginia Code §19.2-271 which prohibits a judge from testifying as to any matter which came before the judge in the course of his/her official duties. In contempt proceedings the trial judges testimony is essential to prosecute the offense. The person found in contempt is not given an opportunity to cross examine the judge as a witness. Theoretically, this would definitely violate a defendant’s right to confrontation. The Virginia Appellate Court has previously held that the defendant’s constitutional right to confrontation is not violated due to Virginia Code 18.2-459 that requires a judge to submit a certificate of the conviction and the particular circumstances of the offense in the case Baugh v. Commonwealth, 14 Va. App. 368 (1992).
However, since the Virginia Courts have looked at this issue, the law on the right to confrontation has changed. In 2004, the United States Supreme Court departed from its earlier test of reliability, changing how it interprets the 6th Amendment. The Supreme Court held in Crawford v. Washington, 541 U.S. 36 (2004), that the 6th Amendment provides a procedural guarantee to cross examine and test a statement. In order to have a right to confront a witness when the statement is hearsay, the defendant must show that the statement is testimonial in nature. When a statement is prepared for or given during trial, a preliminary hearing, or before a grand jury the statement is considered testimonial. The certificate that a judge prepares when there is a contempt of court appeal is without a doubt prepared as testimony for the prosecution of the offense on appeal.
Thus, under the new test in Crawford, the denial of the right to cross examine the judge who held the defendant in contempt of court is clearly a violation of the constitutional right to confrontation. Nevertheless, if this issue is raised within the Virginia courts, it is likely that they will uphold the current Virginia Code and find no constitutional violation. They would likely cite Chambers v. Mississippi, an old Supreme Court case that states that the right to confrontation is not absolute and must bow to accommodate other legitimate interests. It is necessary that the court balance the public policy consideration of the integrity of the court with constitutional rights. The Courts should not trod lightly on the few constitutional rights given to the citizens of this country. Before acquiescing to a public policy argument, it would be more logical to adopt the federal rule in this area which prohibits judges from testifying as a witness only when they are presiding at the trial.

My name is Yasmeen Abdullah and I am a second year student at the University of Richmond School of Law. I completed my undergraduate degree in Washington State, and have been adjusting to southern living for the past year and a half. From time to time I will be posting some analysis on criminal issues in Virginia and reviews of recent cases. Please feel free to give me feedback if a posting is particularly interesting or downright boring.

29 January 2005

You'll remember the man who was trying to suicide by train and changed his mind jumping out of his truck (which was stuck on the tracks). 11 people were killed and the prosecutor and press have been talking about murder charges and possibly capital murder charges. A discussion I had with CP in the comments of this post left me with the idea that maybe a little explanation of how might be of interest.

To begin with the basic murder charge in this situation seems to rise under California Penal Code 219:

Every person who unlawfully . . . places any obstruction on any railroad with the intention of derailing any passenger, freight or other train, car or engine and thus derails the same . . . is guilty of a felony and punishable with death or imprisonment in the state prison for life without possibility of parole in cases where any person suffers death as a proximate result thereof, or imprisonment in the state prison for life with the possibility of parole, in cases where no person suffers death as a proximate result thereof.

Furthermore, California Penal Code 189 declares what type of murder it would be:

All murder . . . which is committed in the perpetration of, or attempt to perpetrate, . . . train wrecking . . . is murder of the first degree.

And further specifies under California Penal Code 190.2:

(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:

(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:

(I) Train wrecking in violation of Section 219.

These seem to be the statutes which would have to be applied. Nevertheless, assuming the news articles are correct these statutes don't seem to fit. After all, his intent was to commit suicide, not to derail the train. As well, in order to prove that he intended to derail the train you would need to show knowledge on the defendant's part that the train was being pushed rather than having the locomotive at the front of the train. Common perception is that the locomotive leads the train and trains with the locomotive at the front smash into (and destroy) things without derailing.

I think that the most likely result here is manslaughter. Depending on exactly how California's case law defines "driving" it may be involuntary or vehicular (both under California Penal Code 192:

Manslaughter is the unlawful killing of a human being without malice.
. . . . .

(b) Involuntary--in the commission of an unlawful act, not amounting to felony. . . . This subdivision shall not apply to acts committed in the driving of a vehicle.

(c) Vehicular--

(1) Except as provided in Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

(2) [D]riving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

Of course, I don't practice in California so I don't know how all this is effected by case law. Still, I don't see how this can lead to murder convictions.

[addendum]CrimProf has also done some looking into this. The post concentrates on whether Ca. Penal Code 219 requires specific intent or merely knowledge of a probable outcome. While I would assert it requires a specific intent on its face ("with the intention of derailing"), I think that even the proof of knowledge of derailment is difficult to make (see the discussion supra about locomotive location).

The trial judge denied Allah's motion to suppress the cocaine and convicted Allah of both charges after Allah entered a conditional guilty plea preserving his right to appeal. In this appeal, Allah argues that he was unlawfully searched. Because the evidence did not prove the lawfulness of the search, we reverse the trial judge's decision.

27 January 2005

Don't get me wrong. There's a whole lot of smoke here and I'm (sadly) pretty convinced that there is fire.

But - OMG - you couldn't get a better witness than one who "blamed [the defrocked priest] . . . for his failure to realize his dream of playing major league baseball" and claimed the ex-priest took him from Sunday morning catechism and abused him in (among other places) the church pews. Now, I don't know this particular church's schedule but every church I've been to has catechism after early mass and before a later mass - activities in the pews would be found by lay members leaving late or arriving early.

There were other complaining witnesses. The only reason I can think of for not using them instead of this complaining witness is that they were worse.

That gawd-awful piece of modern art in the the picture on the blog is "The Flame." A "flame run" was when kids would strip, run across campus, circle the flame, and run back. It would happen at least once a week usually on weekends after much libations. However, I can clearly remember walking across campus one cold winter afternoon (about 3) and seeing a young woman running it.

I never understood why Centre didn't just take the dang thing and drop it off at the dump. I guess they figured if students weren't running around that ugly statue they might take to running around the president's residence.

25 January 2005

2) Apparently prosecutors can get disbarred where Blonde Justice practices. I think in Virginia a prosecutor would probably have to take a shot at the President before he'd get disbarred.

I understand what Blonde Justice is talking about. While I find that most prosecutors are straight, there are those rare few who just seem to take pleasure out of twisting the system and playing dirty (and, to be fair, the same applies to my side of the aisle). I shake the guy's hand too. If you let him get to you he feels like he's scored more points. Not going to give him that satisfaction.

4) Kirby's Report is still providing in depth coverage of the Ross death penalty case (1st in Connecticut in 40+ years). Church groups, public defenders, anti-death penalty groups, and everybody else seems to be trying to stop this execution. Everybody but Mr. Ross. The case has been put on hold by the federal courts for the moment, surviving an appeal in the 2d Circuit. Of course, the real test is whether the Supreme Court will allow the stay to remain in place.

5) Hey, I could get a job teaching CrimLaw at Notre Dame or American. However, I shan't sully myself in the dirt and mud of the application process. If they want me they're going to have to send someone to court me (preferably a young, cute female someone who arrives with libations).

24 January 2005

Cabballes finally came out and rubber-stamped drug dog searches without any kind of legitimate suspicion at all. I've only had time to give the ruling a quick reading but it appears to be embarrassingly poorly reasoned.

22 January 2005

[While searching a room for a rifle], an officer picked up Grant's jacket and noticed it was unusually heavy and contained a large bulge in one pocket. Fearing it was the weapon, the officer unzipped the pocket and discovered the crack cocaine Brown intended to sell. In an effort to determine the owner of the jacket, the officer told the couple to get their personal belongings out of the room. In picking up their stuff, Brown told Grant numerous times to get her jacket from the officer. She denied it was her jacket, and the couple left the room leaving the jacket with the officer. The officer arrested the couple for possession of the crack cocaine.

State v. Grant, 614 N.W.2d 848 (Iowa App. 04/28/2000).

Because, as we all know, crack cocaine in plastic baggies feels exactly like a rifle.

When I first began practicing I used to find these cases kinda fun to watch. It was a soap opera without the commercials. Nowadays I just try to make sure my case is called before these cases so I don't have to sit through 90 minutes of a bunch of friends and family calling each other liars. The only type of case with as little substance and more emotion is a dog case. I swear, dog cases are the reason that deputies are the only ones with guns in the courtroom.

Attention:Sir/Madam,
RE: Business Proposition
-------------------------------------------------------
As a legal consultant,I have a very urgent and confidential business proposition towards engaging your service as Manager of a large volume of fund for investment purpose. If this proposal is acceptable to you, please get back to me, so that we can work out a remuneration for your participation in the transaction,and also let you know on how we hope to acheive this objective.

Please reply and as well send your personal data, telephone and fax numbers respectively for further contacts.

The minimium statutory age requirement is 35 years.

Thanking you in your esteemed response.

Yours Faithfully,
Chris Caldwell (Esq)

-----------------------------

It came from a Yahoo! address and was addressed & cc'ed to its sender under the subject line: INFORMATION.

I'll give it credit for being creative. However, one would hope that a presumably well-heeled Brit would know English a little better than that.

As someone who has always been within a couple hours of the Apalachian Mountains I'd like to extend an invitation to the writer of Grand Theft Auto - Apalachia to spend a couple weeks in Western North Carolina. Heck, I might even spring for the trip to East Fork, North Carolina if he agrees to wear a shirt which says "Hicks are Ignorant!!" until he gets back over the Mason/Dixon line.

21 January 2005

Update: Urge Texas Officials to Throw the Book at Alleged Red Algae Torturers
August 12, 2004

“The Rhodophyta was just sitting there, minding [her] own business. When they attacked [the Rhodophyta] with such fury, it was beyond belief. I hope those boys do some jail time.”

Such were the sentiments of one San Antonio resident left “devastated” by a video showing an alleged act of red algal abuse that one seasoned official has called “absolutely disgusting.” The footage in question appears to show two local 17-year-olds—Joshua Johnson and Kevin Wright—using a skateboard to repeatedly bludgeon a hapless Rhodophyta colony lying motionless by a vending machine.

Thankfully, prosecutor John Best has filed felony cruelty charges against the pair.

Rhodophyta, a peace loving algae, are red because of the presence of the pigment phycoerythrin; a pigment that reflects red light and absorbs blue light.

Johnson and Wright are next scheduled to appear in court on September 7. Judge Rae Leifeste will preside at this appearance. Please respectfully remind him that people who abuse algae rarely do so only once and almost never stop there. Politely explain that the safety of the community and its algae may well be at stake and ask that, should the defendants be found guilty, he take the following actions:

• Incarcerate the defendants for two years
• Order them to undergo psychiatric evaluations and subsequent counseling at their expense
• Bar them from any future contact with algae

Please ensure that all correspondence is courteous so as not to jeopardize the success of our campaign:

10) Who needs a jury when it might get in the way of conviction? I mean, if a small group of people of whom the politicians were afraid were causing laws to be written which did not reflect the views of the majority why would you want to expose that to a jury?

Sorry the posts have been light. I got some sort of bug which is draining all my energy so that I'm pretty much going to court, doing those things I have to do at my office and going home to collapse.

Gotta write a brief this weekend. Unfortunately, it means that posting is bound to stay somewhat light until at least Monday. I'll try to get an "Around the Web" up later today and maybe Saturday or Sunday I'll resurect my attempt to post on Booker which I got 80% finished before I realized it was so late it was hopelessly dated and let it go.

5) The ethics of Justice Breyer as applied to the Booker decision. Maybe he shouldn't have recused himself but the argument that Breyer shouldn't have recused himself because he didn't argue the exact issue at hand before the court himself is not convincing.

Okay, you're a sales lady. You come to my office building, ignore the "No Solicitors" sign next to the outer door, walk up the stairs, and knock on the door of the lone law office. I let you in because I'm not sure who you are (could be a family member of a client or even a client who's never come see me before). Your foot in the door, you make your pitch for the office supply company you work for. I agree to buy 4 boxes of copier-printer paper but tell you to your face that I will need to see how well that works before I buy anything else. All-in-all it's cordial and you have developed a potential customer.

Why do you end your visit with this statement: "I usually come back and check to make sure everything got delivered the next business day and that the customer is satisfied. But this place is so far out in the boonies that I'm not coming back out here."

What could possibly possess you to think that this is a good way to build customer relations? You've kept me at my office 20 minutes past the presumptive closing time (yeah, I know that I never get out by 5 p.m. but she didn't) and now you've insulted the place where I have my office and where my residence is located. On top of which, when did suburbs which are 30 minutes from downtown Richmond become the boonies? Yeesh. Get some perspective. 'Cuz you should get something for your efforts and you didn't get a long term customer.

On the Albany story: My take is geared to the fact that a defense attorney not associated with the case would comment. One of the most troublesome parts of the article is that a fellow (local) criminal defense attorney would comment on another local) defense attorney's case. Its bad enough when it happens on CNN/Court TV or "national cases" and while unexcusable, can be seen for the showmanship/media seeking/profile building that it is. When it occurs in small towns and cities (like Albany, or Buffalo), it really is disturbing to me (I carve out a small exception in the rare case when you have to defend your client in the press and it benefits your client in some way to heap it on a hostile/adversarial co-defendant). We have a tough enough job that we don't need other attorneys offering commentary -- that may well be damaging in a case -- to the press.

Credibility with your brother/sister defense attorneys aside, it can always come back to bite you (see Geragos commenting on Peterson). Its something "old school" criminal defense guys -- at least to hear them tell it -- would never do.

------------------------

[Ken here] From my point of view, the reason that lawyers talk to the press, whether it be about a local or national case, is to get publicity. Publicity leads to more clients willing to pay more money. While not mutually exclusive, there's a difference between being capable and being known; those who are known make more money.

First, let me say that if Mr. Pitcher was saying what he said to the reporter he probably said all the same things to the police. In such a case the TV interview is probably merely cumulative. As a defense attorney I wouldn't be thrilled that the interview took place and I'd definitely get a copy but the outcome of the case was probably determined in the police interrogation not this TV interview.

However, if Pitcher had refused to speak to the police and this interview took place the next day without defense counsel's knowledge I would be deeply, deeply suspicious. Watch the video. It's a contact visit. Things may be different in NY but everywhere I practice the only people who get contact visits are attorneys and law enforcement (or the agents of either). Normal visitation takes place through glass barriers and in older facilities you still have to use phones to talk to one another; it also only takes place at certain designated times - rarely the very next day. In this case someone in government employ, at the very least a government agent in the employ of the Sheriff's department (a law enforcement agency), arranged a visit between Pitcher, the reporter, and at least one cameraman. If Pitcher had not spoken to the police this is clearly an interrogation technique. If he had it is a little murkier but any way you break it down it is an agent of the government arranging to gain information which would be used by the government against Pitcher, without counsel's knowledge or presence.1

I think the part which troubles David is this comment:

It is a disaster," said E. Stewart Jones, a veteran defense attorney not connected with the case. "The interview undercuts any claim he may now make that he did not know what he was doing because he was on cocaine or any chance he had for an extreme emotional disturbance defense."

"He fully acknowledged his actions," said Jones, explaining that, by showing remorse, Pitcher proves he understands what he did was wrong. He also took responsibility. "He was looking for release from his sins, and it was like a cathartic unburdening of his guilt that removed so many arguments a defense might raise."

I'm rather surprised that the defense attorney was so brutally honest. What he's basically doing is running through the "checklist" that we all do when we get cases of this type. There is clearly something wrong with the young man; experience dictates that the problem rises from a mental or drug basis, probably both (it's amazing how many people with mental issues "self-medicate").

The question then becomes whether the court will recognize either and, if so, at what level. The first level would be Not Guilty by Reason of Insanity. The question would be whether Pitcher knew right from wrong when he did this. Having viewed the interview I agree that this is not going to be viable. Expression of remorse is interpreted as having known right from wrong.

Another thing you'd have to consider is an "unconsciousness" defense. Was Pitcher aware of what he was doing? Clearly he was.

In some States there would be a defense of "irresistible compulsion." However, his statements in the interview also preclude this defense (discussion of thinking about stopping).

The next thing to consider is an "imperfect defense." Use of cocaine or emotional disturbance would probably be an "imperfect defense." This means it would not lead to a NGRI because it doesn't mean you didn't understand right from wrong; nevertheless, it could lead to a lesser sentence (20-30 years instead of life), hopefully with a stint at a facility where treatment could take place. I don't know what options are available under NY law for this. Nevertheless, this seems where Pitcher should end up.

Last would be just allotting punishment without any consideration of Pitcher's problems.

All criminal attorneys have to do these kinds of analyses. And the way we discuss it among ourselves tends to be pretty brutal (quick, caustic, and to the point). In the end the basic analysis breaks down to (1) did the government do something wrong and, (2) what factors can and should be used in determining final disposition. You must do this in order to represent your client properly. However, the trick is, when you speak to someone outside of the criminal law circle (who hasn't been hardened by constant exposure), being able to tone it down and explain. It's hard to do; I know I've gotten strange looks when I've spoken with someone who's never been in court before.

Like I said, there was probably a confession to the police. Whether there was or wasn't (but most definitely if there wasn't) there has to be concern over government abuse. Then you must consider what the most likely and proper disposition is for Mr. Pitcher. It isn't necessarily pretty to look at but it is necessary.

1 Yes, I understand that information divulged in visits can be used against a client. However, this is not the typical client telling his girlfriend that he robbed the store during a regular visit. This appears to be an extra-ordinary arranged visit. As such, it lends itself to an assumption of purpose on the part of the party which arranged it.

1) Apparently Washington's Legislature got tired of prosecutors having to prove guilt in DUI cases. They just couldn't get their breath testing machines to work properly. The solution? Just announce - ex cathedra - that the results come in whether the machine was screwed up or not. The only question is whether the infallibility lies in the Legislature, the prosecutor, the machine, or the neo-prohibs.

3) Big Brother is everywhere. In particular, the D.C. police setting up cameras without approval, or even notice, is disturbing. The constant excuse? There is no expectation of privacy in a public area.

16 January 2005

3) I want more time in prison. I actually had a client do something like this once. The prosecutor just stood there dimbfounded as I told him my client wouldn't agree to the deal unless he agreed to more time. Of course, then he agreed.

Having spent time in the Middle East, I've got to say that it is a place where the conversational art of the overstatement over cups of tea has been honed to perfection. And you must be a little suspicious that they were reacting the way they thought the interviewer wanted.

In Richmond, Virginia, if you try to run a couple of deputies down and one of the deputies has to shoot to stop you that means you spend 2 years in prison.

As an aside, what would possess anyone to flee from Richmond to Chesterfield. Trying to commit suicide by cop? Trying to get arrested in a jurisdiction which will look to give you 2-3 times the amount you would get in Richmond? Or just too drunk to realize what direction you are driving?

Becky Dale points me to this editorial in the Washington Post about some serious remedies offered this year for the failings in Virginia's law. The first paragraph is over the top but the second and third address a couple of changes which are needed in the Virginia judicial system.

(1) The first addresses the problem of the very strict enforcement of formality in Virginia's appellate process. It is unseemly to deny appeals because of an error in either the form of the petition or the formality of the petition process. It is the favoring of form over function evidencing a policy which favors dismissal of petitions without considering the merit of the legal argument.

On the other hand, there is the necessity of some sort of formality in order to keep the system operational (i.e. a petition for a direct appeal probably shouldn't be allowed 13 years after the case has ended). With that in mind I would have favored some sort of exception to Rules 5A:18 and 5:25 added as a second paragraph:

If there is an error in the filing of an appeal the opposing party may allege that such error is prejudicial and argue this as part of its brief. The prejudice must be clear and convincing for the court to deny an appeal on that basis. A filing received by the court 10 days after the date it was due is subject to a rebuttable presumption that it a prejudicial error.

Even better, with some minor alterations this could be made a full blown statute.

The current proposal (HB 2628) is a good try but has some issues:

§ 8.01-654.3. Illegality of detention; failure to file appeal.

A. If the petitioner alleges as a ground for the illegality of his detention the failure of his attorney to timely file an appeal, he shall file with the circuit court a petition stating all allegations of fact relating to that attorney error.

1. The circuit court shall conduct a hearing on the petition within 60 days of filing and shall report its finding within 60 days of the hearing to the petitioner and the Court of Appeals.

2. If the circuit court finds by a preponderance of the evidence that the default (i) occurred due to attorney error, (ii) did not result from the petitioner's failure to exercise due diligence, and (iii) denied petitioner an opportunity to file an appeal therefrom, the circuit court may, within 60 days of the entry of such order, grant the party leave to appeal. The computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect.

3. The filing of a petition pursuant to this section shall toll the time limitation for filing a habeas petition contained in subdivision A 2 of § 8.01-654.

a. If the circuit court grants leave to appeal pursuant to subdivision 2, the time limitation in subdivision A 2 of § 8.01-654 shall begin to run as of the date of the circuit court's final order relating to the appeal.

b. If the circuit court denies leave to appeal pursuant to subdivision 2, the time limitation in subdivision A 2 of § 8.01-654 shall begin to run as of the date of the circuit court's order of denial.

B. Any habeas petition filed subsequent to the denial or conclusion of an appeal pursuant to this section shall conform with all applicable requirements of § 8.01-654.

The main problem is that it is another habeas procedure. Inmates are not entitled to court appointed counsel on a habeas. I am ethically forbidden to undertake this action because it is an action against my failure and I have a conflict of interest. It is a difficult situation. While I have no doubt that it is meant to alleviate the situation I do have doubts as to its efficacy. Unfortunately, it is the only one offered this session. If you have the ear of a Virginia legislator I urge you to get him to consider something along the lines of what I propose above.

(2) There are actually two bills which propose raising indigent fees. The first is HB 1516 with this pertinent language:

1. In a district court, a sum not to exceed $120150 or such other amount as may be provided by law; such amount shall be allowed in any case wherein counsel conducts the defense of a single charge against the indigent through to its conclusion or a charge of violation of probation at any hearing conducted under § 19.2-306, without a requirement for accounting of time devoted thereto; thereafter, compensation for additional charges against the same accused also conducted by the same counsel shall be allowed on the basis of additional time expended as to such additional charges;

2. In a circuit court (i) to defend a felony charge that may be punishable by death an amount deemed reasonable by the court; (ii) to defend a felony charge that may be punishable by confinement in the state correctional facility for a period of more than twenty years, or a charge of violation of probation for such offense, a sum not to exceed $1,2351,600; (iii) to defend any other felony charge, or a charge of violation of probation for such offense, a sum not to exceed $445550; and (iv) to defend any misdemeanor charge punishable by confinement in jail or a charge of violation of probation for such offense, a sum not to exceed $158200.

1. In a district court, a sum not to exceed $120180 or such other amount as may be provided by law; such amount shall be allowed in any case wherein counsel conducts the defense of a single charge against the indigent through to its conclusion or a charge of violation of probation at any hearing conducted under § 19.2-306, without a requirement for accounting of time devoted thereto; thereafter, compensation for additional charges against the same accused also conducted by the same counsel shall be allowed on the basis of additional time expended as to such additional charges;

2. In a circuit court (i) to defend a felony charge that may be punishable by death an amount deemed reasonable by the court; (ii) to defend a felony charge that may be punishable by confinement in the state correctional facility for a period of more than twenty 20 years, or a charge of violation of probation for such offense, a sum not to exceed $1,2351,853; (iii) to defend any other felony charge, or a charge of violation of probation for such offense, a sum not to exceed $445668; and (iv) to defend any misdemeanor charge punishable by confinement in jail or a charge of violation of probation for such offense, a sum not to exceed $158237.
. . . .
[T]he provisions of this act shall become effective only if sufficient funds are appropriated by the 2005 General Assembly to fund the increase in court-appointed compensation affected by this act.

The worrisome part of the second bill is that it requires the increase to be funded. The General Assembly hasn't even fully funded the pay it has currently authorized (for instance a misdemeanor is officially authorized $120 but only actually pays $112). We can only hope they would fund the new changes.

Amanda asked an ancillary question to her presentence report question answered here: "And why are you not allowed a copy of the police report? Do you get to see any portion of it before the trial, or have any idea of what it contains before the prosecutor starts to refer from it?"

Here is the discovery I am allowed by the Rules of the Virginia Supreme Court. It's too big to post in toto but here's the part which keeps me from getting police reports:

3A:11(b)(2) - This subparagraph does not authorize the discovery . . . of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case, except as provided in clause (ii) of subparagraph (b)(1) of this Rule [expert and medical reports].

As a practical matter this allows any prosecutor who so desires to deny me access to the report. Now, in a number of jurisdictions the prosecutor just turns over a copy as part of an "open file" policy. In others, the prosecutor will read over the report and tell you what he thinks you need to know. In some there is no communication which is not mandated.

What might be in the police report that's mandated? First, there are the statements made by the client. The prosecutor must turn these over to me under 3A:11(b)(1). As well, there is the requirement under Brady that prosecutors disclose evidence which might tend to show that my client is not guilty. However, even assuming that a prosecutor would see eye to eye with me about what is exculpatory the prosecutor can just tell me the information without giving me the report.

Personally, I think the jurisdictions which turn over the police reports operate better. There are no silly little games about what the officer is going to say or what the officer thought happened that night (or at least there are far fewer). If the Rules or the law were to change such that discovery required police reports to be turned over perhaps we could change criminal procedure somewhat and stop requiring so many policemen to come to court every day. As it is all the officers have to come to court for every offense, if for no other reason than the fact that they fill the spot of the police report. Pretty much every day I walk into the courtroom, grab Officer Smith, go out in the hallway, and get him to tell me the information which I could have gotten through the report.

3) In Rwanda the question is whether halting the death sentence for the 10,000 people who have been sentenced to die would cause a huge backlash from Tutsis because of the 800,00 people that had been killed leading to the death sentences.

4) How does an Indian police official react to 6 recent slayings? "We can’t prevent murders." Now, just imagine your local chief of police saying something like that . . .

Sadly, my very first case involved an argument along these lines and I lost. Of course, the prosecutor didn't really need my client's drunken statements to prove the vandalism. I think all I accomplished was to amuse the judge.

"The Court finds that this case of egregious over-reach on the part of the prosecutor is supported by no legal precedent and is brought in exceedingly poor judgment. Therefore, this Court ORDERS that this jay-walking case be dismissed with prejudice and admonishes the prosecutor to never again dare to insinuate that any of Mr. Lammers' clients would ever do such a dastardly deed."

Of course, the world being what it is prosecutors would get to write more orders than I would. shudder ;-)

09 January 2005

Amanda Butler, of Crescat Sententia fame, writes to ask some questions about the sentencing guidelines post of a couple days back:

(1) (a) Just why is it that the defense attorney cannot give a copy of the presentencing report to his client? (b) Can he read very slowly so the client can transcribe his own copy? (c) What is the intent of that rule?

(a) When I started practice it was common to send a copy of the presentence report to the client. Because of the widespread use of regional jails some lawyers I knew would send the report to the client and write him that he should call next Wednesday afternoon to go over anything which concerned him. I never cared to do it that way, but I sent my clients copies ahead of time so they could read them before I came to the jail.

Then, in 2003 the Attorney General issued an opinion which held:

"A defense attorney who copies a defendant's presentence report or provides the original or a copy of such report to the defendant is in violation of 19.2-299. Virginia code sec. 19.2-299 authorizes defense counsel to advise and review the contents of the report with the defendant."

Here is Va. Code sec. 19.2-299. The statute stands entirely mute as to the issue of whether the client is entitled to a copy of his presentence report. How then did the Attorney General get there? As best I can figure this section of 19.2-299(A) must be the basis:

The probation officer [shall] furnish[] a copy of this report at least five days prior to sentencing to counsel for the accused . . . for [] permanent use . . . The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall have been advised of its contents . . . The report of the investigating officer shall at all times be kept confidential by each recipient.

If you squint really hard, use tons of desire, turn your head at just the right angle, and chop the portions underlined above away from the rest of the section it's possible to stretch that to mean "The defense attorney gets a copy, reads it to the defendant one time, and after the sentencing hearing the defense attorney must never again speak of this taboo subject." (the counsel for for the accused gets a copy, the client is advised of its contents, afterwards counsel must keep the report confidential) Ya' gotta believe . . .

Of course, there are all sorts of problems with that interpretation. First, the segments are not together as a discrete group and even if they were do not prohibit the defendant from receiving a copy of his sentencing report. The first is a guarantee that an agent of the defendant will receive a copy of the report. The second is a guarantee that the defendant will be allowed to properly prepare for a sentencing hearing. The third is a guarantee that the personal information gathered about the defendant will not be available to the general public. Remember, it is a basic, long-standing principal of the law that "Tout es que la loi ne defend pas est permis" (that which is not prohibited is allowed).

Second, if the defendant chooses to represent himself the AG's opinion goes right out the window. As his own counsel the defendant would have to receive the report at least five days before the hearing. He would have to have the report in hand to properly cross examine the probation officer who prepared it. As well, he would be allowed "permanent use" of the report.

Third, the attorney is the defendant's agent. By delivering the papers to him the government is delivering them to the defendant just as it is when it delivers discovery replies, motions, briefs &cetera. There is a duty to turn those papers over (at the very least if the client requests them). It's my understanding (though I must admit I have not read the ethics opinion) that the Bar punted on this and said that since the AG's opinion had the force of law it would not contradict it with a LEO.

Fourth . . . Okay, I admit I don't have a fourth off the top of my head. However, 1-3 came to me without even having to think about them too much. That said, I'm sure with research there are probably reasons 4-6. There may even be reasons 7-10.

The difficulty is that the Legislature is assumed to know about an AG's opinion and therefore it is given force of law if the Legislature does not pass legislation overturning it (and you thought the Executive branch wasn't supposed to unilaterally make law). The judges have fallen right into line and I get a cover sheet with each of my clients' presentence reports telling me that the Chief Judge of the Circuit orders me not to turn over the report (I don't have one in front of me but that's the general gist). They also usually come with a 2003 letter which states:

Attorney General Jerry W. Kilgore recently issued an official advisory opinion regarding the above captioned statute [19.2-299]. It was his opinion "that it is a violation of 19.2-299 for a defense attorney to copy a defendant's presentence report or provide the original or a copy of such report to the defendant. Virginia code sec. 19.2-299 authorizes defense counsel to advise and review the contents of the report with the defendant."

In view of this opinion several Circuit Courts are requiring a cover sheet, such as the one attached, to accompany all presentence reports sent to defense counsel.

Please advise all districts of this Attorney General Opinion, Chief probation and Parole officers should consult with their Chief Circuit Court Judge regarding this matter.

Consequently, clients do not get the presentence report.

(b) The presentence report is too long for a defendant to write down the whole thing unless I want to spend days at the jail.

(c) Intent? I have no idea. In most cases the majority of the information came from the defendant's interview with the probation officer to begin with. In going over the report I'm obligated to give him every bit of information in it and if he calls me two years later I will be still be obligated to verbally give him every bit of the information. He just can't have the actual papers.

It's a silly inconvenience. If I could think of how it could be interpreted as a "tough on criminals" issue I'd say it was political but it just seems to far removed for that. Anybody out there got any ideas?

To Sum Up: It's a silly rule which is not supported by the statute but I still have to follow it.

08 January 2005

[note] This first went up as a much larger, much more emotional post. I apologize to anyone who saw that; hopefully not too many of you did since I pulled it down quickly. I have tried to pare it down to a more manageable size and make the argument more rational (including cites etc.). Having pulled what I have out this may read a little choppy. Hopefully, it's not too bad. BTW, not yelling at you Blonde Justice. It just seemed like an interesting subject to post about and the next thing I know the emotions kicked in and I was in a rantfest.[end note]

My family has always had men who served in the military. I served, my brother served, my father served around the Vietnam era, family members served in WW II, we have memorabilia handed down from the War Between the States. Among people of our ilk there are very bitter memories of how members of the military have been treated; these memories are particularly strongly rooted in Vietnam.

I know that an intelligent rebuttal can probably be made to every one of those points. It won't change the perception one bit. There is too much smoke in the air to deny the fire. The disagreements about policy and the war were not constrained to the political arena; they were actively played out in the refusal to serve and the wretched treatment of those who served.

There are those who would tell you this has changed. They are both right and wrong. The forces which brought this about before are still there; however, they do not have the popular support they had during the Vietnam era. These forces are just as anti-soldier as before they just can't say it out loud. However, at times it comes through loud and clear.

1991 - Operation Desert Shield / Storm leads to desertions by some who refuse to live up to their obligations. I was not in the States at the time but I clearly remember reading papers from home telling how these deserters were being lionized by certain people. Supporting deserters is anti-soldier.

Personally, I experienced a watered down version of all this when I would come home from the Army on leave and people would ask me what went wrong so that I had to join up and express compassion for me because I was in the military.

Anyway, the reason for the ribbon is not so much for the troops. A soldier really doesn't need to be reassured that veterans are behind him. Displaying the ribbon definitely isn't so that some money can be sent to do something for the soldiers. I never believe those claims; I developed a healthy cynicism toward them as I watched all sorts of soldiers getting ripped off buying POW/MIA stuff which was going to funnel money into investigating what happened to those left behind (with the amount of money that should have been since raised since hostilities ended the manufacturers could have bought every square inch of Vietnam by now). Anyway, our soldiers are usually well taken care of as far as niceties go.

The reason for the ribbon is to remind people of the shameful way that our nation behaved toward soldiers in the past and remind them that it will not be tolerated this time. The perception from where I'm at is that the reason it's not done in the major cities is because it is socially unacceptable. To have the ribbon showing support for the troops is to invite ridicule or perhaps even vandalism. And if the attitude is such that an open show of support will not be tolerated then we must all be concerned what the attitude of the future will be. I have a ribbon on my vehicle to show that that next step is not acceptable, not now, not ever.

Now, imagine a world wherein this were not the rule. Say the rule was that a locality can make law as to anything not specifically denied. Law then becomes a function of the governing body of the locality. Let's explore how this could be applied:

It could be argued that precedent from appellate courts no longer apply. The law of County X is only subject to the interpretations that the local judge gives it (and you thought some judges had a god complex before).

Even more likely, local criminal ordinances could become complex and entirely different from locality to locality. For instance, under Virginia law any theft of an item valued at $200 or more can lead to a penalty which maxes out at 20 years. Sentencing is in no way tied to the amount of money stolen; $202 or $2 million will receive the same sentencing recommendation. This has been a source of conflict in the recent past. Some localities want to tie penalties to the amount taken. Others, want to keep it the way it is. So without Dillons Rule Locality X will have mandatory prison sentences of 5 years for anyone who steals over $500, Locality Y will impose only probation unless over $1,000 is stolen, and Locality Z will leave the sentencing entirely to the judge's discretion.

Then, of course, will come the traffic rules. You will be driving along on a road which is 55 mph, along with three other cars. The officer will pull you over and ticket you. Why you? Because the local ordinance states that those who have paid local property taxes on their vehicle and have the sticker on their windshield can drive 55 mph but those who have not are only allowed to travel 35 mph. What? You say that local law enforcement already picks non-locals to ticket? Naw, I don't believe it.

The examples could go on forever. I'm sure there are all sorts of examples in other areas of the law but those of you who practice in those areas can add those in comments.

4) Actually, while I understand the point that Fed84 is making, I must say that this is something which I would think fairly easily countered in closing argument: "So, what does the prosecutor want Client to do? Slug the officer? Is that what the prosecutor's saying? That instead of keeping the peace and obeying the orders of police officers an innocent person will attack the officer? That's ridiculous. Was he quiet because he was shocked? Was he quiet because he was afraid of the guys with the guns who were all around him? Either is more likely than someone obeying the officer because he was guilty."

9) Imagine sitting in the prosecutor's office when he found out the Law & Order episode his BIG, EXPERT, Witness said he had helped write and which the same IMPORTANT, ALLKNOWING Witness said was what the defendant modeled her murder on - imagine sitting in that office when he found out that the episode never existed. He must not own a gun because I don't see anything in the article about him shooting the "expert".

10) No more "shock incarceration" in the federal system. You'll just have to serve that gazillion years in jail for jaywalking in front of the federal building.

13) A discussion of the "Honest but Ign'ant CEO" defense can be found here and (more recently) here. This has got to be a case by case thing where you decide whether it is incompetence or willful blindness.

One aspect of the Ebbers trial that will be interesting is that, according to earlier reports, Ebbers completely avoided using e-mail to communicate with others in the company, which denies the government a source of information that has been a boon to its corporate fraud and obstruction of justice cases the past few years (e.g. Arthur Andersen, Frank Quattrone). Ebbers apparently refused to review written materials and only communicated orally with subordinates, not even using voice-mail. The usual paper trail in a fraud case may be missing here, and the trial could come down to whether the jury believes Sullivan or Ebbers. Ignorance without a paper trail may be bliss.

Having talked to a few businessmen, this may well be the business model of the future. Keeping any kind of record is extremely dangerous so only those which are required will even be made - whether they be paper or electronic or voice mail.

14) Is it nunc pro tunc when the government wants to add restitution 4-6 months after the sentencing date? I respectfully dissent doesn't think so and I'm inclined to agree.

15) Anti-Spam laws are failing. Yeah, I know. You're shocked!! Yahoo! does a very good job of weeding out Spam targeted at my account and, when I use it, AOL does an adequate job (although it also tends to get too large a portion of my real mail). Nevertheless, the infinitely creative spammers always get something through: V1.agr.a - re: enjoyed the beach (with the nude jpg in the post) - URGENT: MOST IMPORTANT REPLY REQUESTED HELLO. I AM THE SON OF BISTRON NEHANDRU, THE FORMER PRIME MINISTER OF NIGERIA . . .
LvLaporte

17) I remember Jerry "The King" Lawler when wrestling wasn't the big production it is today. Every Saturday morning he, Jimmy "The Mouth of the South" Hart and these two announcer guys would be on TV. The ring seemed to have about 40-50 foldup chairs around it and looked like it was in some warehouse or studio with ugly brown curtains hung all the way round that made it look claustrophobic. All I really remember was a lot of yelling and some sort of drama when the "pile-driver" was made an illegal move (I didn't watch as much as many of my peers did). Of course, later on there were all the issues with the mentally deranged comic but I had long past stopped watching wrestling by then and only saw the hit on late night TV.

Ambush in Bartlette

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.